Policy Document
 

Appearance of Bias for the EEOICPA Program and 

General Conflict of Interest Requirements 

March 2016 

U.S. Department of Health and Human Services 

Centers for Disease Control and Prevention 

National Institute for Occupational Safety and Health 
Direc r 

Nati nal Institute for Occupational Safety and Health 

EFFECTIVE: March 30, 2016 

REPLACES: May 3, 2011 

June 3, 2008 

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Disclaimer

This policy document is for internal use only by the National Institute for Occupational Safety

and Health (NIOSH), including all of its divisions, offices, and laboratories. This document is not

intended to and does not create any right or benefit, substantive or procedural, enforceable at

law or in equity, against the United States, its agencies or other entities, its officers, employees

or any other person.

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Policy on the Appearance of Bias for the EEOICPA Program and General Conflict

of Interest Requirements

POLICY: This document summarizes the legal requirements regarding conflicts of interest which

apply to National Institute for Occupational Safety and Health (NIOSH) employees and

members of the Advisory Board on Radiation and Worker Health ("the Board") as Federal

employees; it also outlines NIOSH's Appearance of Bias Policy regarding participation in

activities related to the Energy Employees Occupational Illness Compensation Program Act

(EEOICPA). The NIOSH policy requirements apply to NIOSH employees, members of the Board,

and employees of Federal contractors ("contractors") who provide scientific and technical

support to NIOSH and/or the Board under EEOICPA (through contract modifications).

AUTHORITY: NIOSH conducts dose reconstructions, adds new groups to the Special Exposure

Cohort, and administers the Advisory Board on Radiation and Workers Health under authority

of Pub. L. 106‐398, Title XXXVI, § 3601, the Energy Employees Occupational Illness

Compensation Program Act of 2000.

SCOPE: The contents of this document do not represent the full scope of the conflict of interest

laws and ethics regulations; rather, the intent of this document is to provide a summary of the

laws and regulations relevant to individuals involved in the NIOSH implementation of the

Energy Employees Occupational Illness Compensation Program. The "Financial Conflict of

Interest" and "Appearance of Loss of Impartiality" sections provide an overview of the

provisions of the conflict of interest laws (18 U.S.C. § 208) and ethics regulations (5 C.F.R. §

2635.502) applicable to Federal employees (both Regular Government Employees (RGEs), such

as NIOSH employees, and Special Government Employees (SGEs), such as Board members).

When facing a potential conflict of interest situation, Federal employees should work with an

ethics official. NIOSH employees please contact the NIOSH COB Officer and Ethics Program

Points of Contact. http://intranet.cdc.gov/od/hcrmo/html/ethics/ethics_poc.html#NIOSH.

Board members please contact the Board’s Designated Federal Official to evaluate the situation

under 18 U.S.C. § 208, 5 C.F.R. § 2635.502, and NIOSH's Appearance of Bias Policy, which is

discussed in the third section of the document.

Financial Conflicts of Interest

Legal Requirement for Federal Employees

Financial conflicts of interest are governed by 18 U.S.C. § 208 and associated rules and

regulations. This criminal statute prohibits a NIOSH employee (any RGE) or a Board member

(any SGE) determined to have a financial conflict of interest from participating personally and

substantially in an official capacity in a particular matter concerning a Department of Energy

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(DOE) or Atomic Weapons Employer (AWE) facility for which the individual is determined to

have the financial conflict of interest. Meaning, a NIOSH employee, or a Board member, will be

prohibited from participating in a particular matter involving a DOE or AWE facility, if that

individual has a financial interest in the outcome of that particular matter.1

For purposes of this statute, the financial interests of other individuals or entities with certain

relationships with the Federal employee are also imputed to the employee. The statute reads:

...[W]hoever, being an officer or employee of the executive branch of the United States

Government, ... including a special Government employee, participates personally and

substantially as a Government officer or employee, ... in a ... particular matter in which,

to his knowledge, he, his spouse, minor child, general partner, organization in which he

is serving as officer, director, trustee, general partner or employee, or any person or

organization with whom he is negotiating or has any arrangement concerning

prospective employment, has a financial interest ‐‐ Shall be subject to the penalties set

forth in section 216 of this title.

18 U.S.C. § 208(a).

This statute permits The Department of Health and Human Services (HHS) to make limited

exceptions to the above prohibition. Such exceptions may be made through the granting of

waivers. Waivers require careful consideration by the appropriate HHS officials and are only

granted on a limited, case‐by‐case basis. In order for such a waiver to be considered, the

employee must disclose the disqualifying financial interest and the nature and circumstances of

the particular matter to the proper government official before participating in that matter.

For a RGE (such as a NIOSH employee), under 18 U.S.C. § 208(b)(1) the prohibition may be

waived only in very limited circumstances where:

...[T]he officer or employee first advises the Government official responsible for

appointment... of the nature and circumstances of the...particular matter and makes full

disclosure of the financial interest and receives in advance a written determination

made by such official that the interest is not so substantial as to be deemed likely to

1 Any Federal employee (either a Regular Government Employee or a Special Government Employee)

with covered employment at an EEOICPA‐covered facility who has been diagnosed with a covered

cancer (during or after their employment) has been determined to have a financial conflict of interest

under 18 U.S.C. § 208. The financial conflict of interest exists even if the individual has not filed for

compensation under Part B of EEOICPA.

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affect the integrity of the services which the Government may expect from such officer

or employee...

18 U.S.C. § 208(b)(l).

The statute also contains an exception to allow the participation of SGEs who are serving on a

committee established under the Federal Advisory Committee Act (such as Board members)

and have a conflicting financial interest. The standard for granting a waiver under this provision,

however, differs from that for RGEs:

[I]n the case of a special Government employee serving on an advisory committee

within the meaning of the Federal Advisory Committee Act..., the official responsible for

the employee's appointment, after review of the financial disclosure report filed by the

individual..., certifies in writing that the need for the individual's services outweighs the

potential for a conflict of interest created by the financial interest involved....

18 U.S.C. § 208 (b)(3).

To summarize, in order for either a Board member or an NIOSH employee to participate in

matters where he or she has a financial conflict, HHS must grant that individual a waiver. These

waivers require careful consideration by appropriate HHS officials and are only granted on a

limited, case‐by‐case basis. Waivers cannot be issued for past conduct.

Policy Requirement for Contractor Employees

Contractors are not covered by 18 U.S.C. § 208, although they are governed by the Federal

Acquisition Regulation and its requirements regarding organizational conflicts of interest. In

addition, NIOSH and CDC have contractually required contractors providing technical support to

the NIOSH Division of Compensation Analysis and Support (DCAS) or the Board to have conflict

of interest plans. Under these plans, the contractors shall prohibit any employee (or the

employee of a subcontractor) determined to have a financial conflict of interest from

participating in any capacity in a particular matter concerning a DOE or AWE facility for which

the individual is determined to have the financial conflict. Such determinations of financial

conflict shall be made by the contractor's project manager in consultation with the contracting

officer's representative, the agency's contracting officer, and agency and HHS officials under

the contractor's conflict of interest plan.

Appearance of Loss Impartiality

Legal Requirement for Federal Employees

Regulations under the "Standards of Ethical Conduct for Employees of the Executive Branch"

govern the appearance of a loss of impartiality in the performance of government duties.

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Specifically, the regulation at 5 C.F.R. § 2635.502 prohibits participation by a Federal employee

(either a RGE or SGE) in his or her official capacity in a particular matter involving specific

parties if the employee has a covered relationship2 with one of the parties to the matter and

such participation would cause a reasonable person to question the employee's impartiality,

unless participation has been specifically authorized by an agency designee. The regulation

states:

Where an employee knows that a particular matter involving specific parties is likely to

have a direct and predictable effect on the financial interest of a member of his

household, or knows that a person with whom he has a covered relationship is or

represents a party to such matter, and where the employee determines that the

circumstances would cause a reasonable person with knowledge of the relevant facts to

question his impartiality in the matter, the employee should not participate in the

matter....

5 C.F.R. § 2635.502.

Under 5 C.F.R. § 2635.502, neither a NIOSH employee nor a Board member3 may participate in

a particular matter involving specific parties (such as a matter in which a DOE or AWE facility is

a party) if the individual has a covered relationship with that DOE or AWE facility or an

appearance of impartiality concern, unless that employee has both informed the agency

designee of the appearance problem and received an authorization from the agency designee.

Without such authorization, participation is prohibited. HHS may grant an authorization for a

NIOSH employee or a member of the Board to participate in such a matter at its discretion. The

regulation states:

Where an employee’s participation in a particular matter which involves specific parties

would not violate 18 U.S.C. § 208(a), but would raise a question in the mind of a

reasonable person about his impartiality, the agency designee may authorize the

employee to participate in the matter based on a determination, made in light of all

2 An employee is deemed to have a covered relationship with: anyone with whom the employee has or

seeks a business or financial relationship (other than a routine consumer transaction); a member of the

employee's household; a relative with whom the employee has a close personal relationship; anyone

with whom the employee's spouse, parent, or dependent child is serving or seeking to serve as an

officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee; any

person with whom the employee has served as an officer, director, trustee, general partner, agent,

attorney, consultant, contractor, or employee within the past year; and any organization in which the

employee is an active participant. See 5 C.F.R. §2635.502(b)(1).

3 In certain circumstances involving more broadly applicable issues, there is also a regulatory exemption

available to Special Government Employees serving on advisory committees. An SGE "may participate in

any particular matter of general applicability where the disqualifying financial interest arises from his

non‐Federal employment or non‐Federal prospective employment, provided that the matter will not

have a special or distinct effect on the employee or employer other than as part of a class." 5 C.F.R. §

2640.203(g).

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relevant circumstances, that the interest of the Government in the employee's

participation outweighs the concern that a reasonable person may question the

integrity of the agency's programs and operations. Factors which may be taken into

consideration include:

1.	 The nature of the relationship involved;

2.	 The effect that resolution of the matter would have upon the financial

interests of the person involved in the relationship;

3.	 The nature and importance of the employee's role in the matter, including

the extent to which the employee is called upon to exercise discretion in the

matter;

4.	 The sensitivity of the matter;

5.	 The difficulty of reassigning the matter to another employee; and

6.	 Adjustments that may be made in the employee's duties that would reduce

or eliminate the likelihood that a reasonable person would question the

employee's impartiality.

5 C.F.R. § 2635.502(d).

Policy Requirement for Contractor Employees

Contractors are not covered by 5 C.F.R. § 2635.502, although they are governed by the Federal

Acquisition Regulation and its requirements regarding organizational conflicts of interest. In

addition, NIOSH and the CDC have contractually required contractors providing technical

support to NIOSH (DCAS) or the Board to have conflict of interest plans. Under these plans, a

contractor's employee must obtain an authorization in order to participate in a particular

matter involving specific parties concerning a DOE or AWE facility for which the individual is

determined to have an appearance of conflict. Without such authorization, participation is

prohibited. Authorization may be granted when it is determined, based on all relevant

circumstances, that the interest of the Government in the contractor employee's participation

outweighs the concern that the Program’s integrity may be questioned. This determination

shall be made by the contracting officer's representative in consultation with the project

manager, the agency's contracting officer, and agency and HHS officials.

Appearance of Bias Policy

As permitted by HHS, CDC and NIOSH specify the following policy requirements regarding

potential appearance of bias, which go beyond the legal requirements for Federal employees

specified above. These requirements apply to NIOSH employees and Board members, and have

been incorporated to apply, through contract modification, to contractors providing scientific

and technical support to NIOSH or the Board under EEOICPA.

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A NIOSH employee or Board member determined to have an appearance of bias is prohibited

from participating in a particular matter involving specific parties, unless s/he has first

requested and received an approval to participate in such matters. CDC, in consultation with

HHS, may grant an approval for a NIOSH employee or Board member when CDC determines,

based on all relevant circumstances, that the interest of the Government in the employee's

participation outweighs the concern that the program's integrity may be questioned.

Policy Requirement for Contractor Employees

NIOSH and CDC have contractually required contractors providing technical support to NIOSH

(DCAS) or to the Board to have conflict of interest plans. Under these plans, a contractor must

obtain an approval in order to participate in a particular matter involving specific parties (such

as a matter concerning a DOE or AWE facility) for which the individual is determined to have a

potential appearance of bias. Without such approval, participation is prohibited. Approval may

be granted when it is determined, based on all relevant circumstances, that the interest of the

Government in the contractor's participation outweighs the concern that the program's

integrity may be questioned. This determination shall be made by the contracting officer's

representative in consultation with the project manager, the agency's contracting officer, and

agency and HHS officials.

Potential Appearance of Bias

The circumstances deemed to constitute a potential appearance of bias include, but are not

necessarily limited to:

•	 Status as a covered employee under EEOICPA based on employment at the DOE or

AWE facility.

•	 Employment for any duration in the design, development, or management of

radiation safety or dosimetry records management operations of the DOE or AWE

facility.

•	 Covered employment at the DOE or AWE facility for any duration with possible

exposure to an acute radiation exposure incident potentially covered under the

definition of a "discrete incident" under 42 C.F.R. § 83.3(c)(i).4

•	 Where a spouse, parent, or non‐dependent child has the status of either a claimant

under the Act or a covered employee under EEOICPA based on employment at the

DOE or AWE facility.

•	 Participation as one of the following: (1) an authorized representative for a claim

under EEOICPA (2) an SEC petitioner; or (3) an advocate for a claimant or an SEC

petition at a specific DOE or AWE facility.

4 To the extent circumstances under this item or the two preceding it give rise to a potential claimant

status, they should be evaluated pursuant to 5 C.F.R. § 2635.502 (i.e., "potential appearance of loss of

impartiality"), and not to the NIOSH Appearance of Bias Policy.

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•	 Membership in a union which serves as a petitioner for an SEC petition.

•	 Participation as an expert witness in litigation involving safety or health conditions at

the DOE or AWE facility, when such participation is not deemed a financial conflict of

interest under 18 U.S.C. § 208 or an appearance of conflict under 5 C.F.R. §

2635.502.

•	 Authorship of a report or the delivery of a public statement (including testimony)

indicating that the individual has taken a position on a particular matter involving

specific parties at a DOE or AWE facility, independent of his or her position with

NIOSH, the Board, or a contractor providing technical support to NIOSH or the

Board, when such particular matter is now at issue in the program.

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